If a s21 notice is served does this mean tenants don’t have to give notice to quit?

Here is a question to the blog clinic from Tanya (not her real name) who is an agent.

A section 21 was issued as the landlord was putting the property up for sale. The notice expired some months ago but as the property was not sale agreed the landlord did not seek to enforce eviction but advised the tenants that he may rely on it once a sale was agreed.

The tenants themselves have now decided to vacate in 14 days and have not provided the necessary one months written notice.

Do they have too ? As they are relying on the section 21 notice from the landlord.

My understanding has always been that the tenant DOES have to give notice.  The legislation is quite clear – the section 21 notice does not end the tenancy, and this will continue until such time as the Judge makes an order for possession (s21(3)).

So it also follows that if the tenant wants to leave he should comply with the normal notice requirements.  These are:

• If the tenant wishes to end the tenancy before the end of the fixed term, this can only be done by agreement with the landlord, unless there is a valid break clause
• Provided the tenant leaves on or before the last day of the fixed term, he does not have to give notice and the landlord cannot claim rent in lieu of notice
• If the tenant stays on and a periodic tenancy is created, then at least one full period notice must be given, to end at the end of the period.  So if a monthly periodic tenancy arises on the 5 June then the tenant must give at least one months notice ending on the next 4th day of the month after one month.  Or to put it another way, the notice period is between one and two months, depending on when in the month it is served.

The only exception to this that I can see is if the tenant leaves on or very shortly before the date for possession given in the section 21 notice.  I don’t think it is reasonable for a tenant to have to give notice in this situation unless perhaps he has agreed with the landlord that he will be staying on.

However if the tenant wants to leave several weeks before the s21 notice date, or  if he stays on afterwards – particuarly if this is with agreement with the landlord, then I think he should give the proper notice.

The fact that the landlord has served a section 21 notice does not give the tenant ‘carte blanche’ to leave whenever he likes without giving proper notice to the landlord.

However each case will rest on its own facts, and there may be circumstances where this is not the case.

In your case it sounds as if the tenant should have provided proper notice, and if so you would be entitled to make a deduction from the deposit for rent in lieu of notice.  If the tenant then objects and refers the matter to adjudication you will then be able to see if the adjudicators agree with me!

A warning note

The landlord may want to consider allowing the tenants to leave at this time without penalty.

If a sale is agreed and the tenants fail to vacate and insisst on their legal right to be evicted through the courts, this would probably put the sale in jeopardy as it would take the landlord some four to six months to complete the eviction.

My feeling is that if a landlord IS going to want a tenant to vacate then he should be grateful that the tenant co-opeartes, even if this is not by leaving on the exact date, as it will save the landlord the cost and trouble of eviction proceedings.

If rent in lieu of notice is demanded, this may risk the tenant deciding to stay on after all and be difficult about things.